ABCMR Record of Proceedings (cont) AR20040004980
RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 3 May 2005
DOCKET NUMBER: AR20040004980
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun / DirectorMr. Joseph A. Adriance / Analyst
The following members, a quorum, were present:
Ms. Shirley L. Powell / ChairpersonMr. Patrick H. McGann / Member
Ms. Diane J. Armstrong / Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
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ABCMR Record of Proceedings (cont) AR20040004980
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, award of the Purple Heart (PH).
2. The applicant states, in effect, that his separation document (DD Form 214) does not reflect that he received the PH for being wounded while serving in the Republic of Vietnam (RVN).
3. The applicant provides no documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice that occurred on 1 August 1967. The application submitted in this case is dated
29 July 2004.
2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.
3. The applicant’s military record shows that he was inducted into the Army and entered active duty on 2 August 1965. He was trained in, awarded and served in military occupational specialty (MOS) 11D (Armor Intelligence Specialist) and the highest rank he attained while serving on active duty was sergeant (SGT).
4. The applicant’s Enlisted Qualification Record (DA Form 20) confirms that he served in the RVN from 6 January 1966 through 5 January 1967. During his RVN tour, he was assigned to Company A, 1st Battalion, 52nd Infantry, performing duties in MOS 11C as an ammunition bearer. Item 40 contains an entry indicating he received a fragmentation wound to the face in 1966. Item 41 (Awards and Decorations) does not include the PH in the list of earned awards, but does contain a pencil entry indicating that he was not issued the PH for his injury.
5. The applicant’s Military Personnel Records Jacket (MPRJ) contains no indication the applicant received a wound/injury as a direct result of, or that was caused by enemy action while serving in the RVN. The only medical treatment document on file shows that while serving in the RVN, the applicant was treated for a knee injury on 28 November 1966. The MPRJ also contains a copy of his final separation final examination (SF 88). This document gives no indication the applicant was ever wounded/injured in action.
6. On 1 August 1967, the applicant was honorably released from active duty after completing 2 years of active military service. The DD Form 214 he was issued at that time shows the he earned the following awards during his tenure on active duty: National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal (VSM) with 1 bronze service star, RVN Campaign Medal, Combat Infantryman Badge and Expert Qualification Badge with Rifle and Mortar Bars. The applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged).
7. During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster. The applicant’s name is not included on this roster.
8. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states, in pertinent part, that in order to award a PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, the wound must have required medical treatment and the medical treatment must have been made a matter of official record.
9. Paragraph 2-13 of the awards regulation contains guidance on award of the VSM and it states, in pertinent part, that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN. Table B-1 contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, he was credited with participating in the Vietnam Counteroffensive Phase I and Vietnam Counteroffensive Phase II campaigns.
10. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for unit citation badges awarded during the Vietnam Conflict. It confirms that during his tenure of assignment in the RVN, the applicant’s unit (1st Battalion, 27th Infantry Regiment) earned the Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.
DISCUSSION AND CONCLUSIONS:
1. The applicant’s claim of entitlement to the PH was carefully considered. However, by regulation, in order to award the PH it is necessary to establish that a soldier was wounded as a result of enemy action, that the wound required treatment by a medical officer, and that the record of medical treatment was made a matter of official record. However, although there are indications in the record that he received a fragmentation wound to the face, while serving in the RVN, there is no evidence this wound was received as a direct result of, or that it was caused by enemy action. Further, there are no medical treatment files in the MPRJ that indicate he was ever treated for a combat related wound/injury.
2. Notwithstanding the entries in Items 40 and 41 of his DA Form 20, there are no orders or documents on file in his MPRJ that indicate he was ever recommended for, or awarded the PH by proper authority. Further, he authenticated his DD Form 214 with his signature on the date he was separated from active duty. In effect, this was his verification that information contained on the DD Form 214, to include the list of earned awards, was correct at the time the document was prepared and issued. Thus, absent any corroborating evidence of record to confirm his wound was combat related, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. Records show the applicant should have discovered the alleged error or injustice related to award of the PH now under consideration on 1 August 1967. Therefore, the time for him to file a request for correction of any error or injustice expired on 31 July 1970. However, he failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.
5. The record confirms that based on his RVN service and campaign participation, the applicant is entitled to the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation and 2 bronze service stars with his VSM. The omission of these awards is an administrative matter that does not require Board action. Thus, correction of his records will be made by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.
BOARD VOTE:
______GRANT FULL RELIEF
______GRANT PARTIAL RELIEF
______GRANT FORMAL HEARING
___DJA _ ___PHM_ ___SLP__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.
3. The Board determined that administrative error in the records of the individual should be corrected. Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show his entitlement to the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and 2 bronze service stars with his Vietnam Service Medal; and by providing him a corrected separation document that includes these awards.
____Shirley L. Powell_____
CHAIRPERSON
INDEX
CASE ID / AR20040004980SUFFIX
RECON
DATE BOARDED / 2005/05/03
TYPE OF DISCHARGE / HD
DATE OF DISCHARGE / 1967/08/01
DISCHARGE AUTHORITY / AR 635-200
DISCHARGE REASON / ETS
BOARD DECISION / DENY w Adm Note
REVIEW AUTHORITY
ISSUES 1. 61 / 107.0015
2. 46 / 107.0000
3.
4.
5.
6.
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